Musician Victoria Aitken and actor Kevin Spacey have made bold, but contrasting, contributions to the copyright debate. Lawyers would do well to listen to both of them

Back in the late 1990s and early 2000s, Managing IP was inundated by smart copyright lawyers and professors wanting to contribute articles on “the death of copyright” or “why copyright law is not fit for purpose”. The context was the explosion in online music piracy, and in particular peer-to-peer file sharing. Years of legal arguments eventually resulted in the 2001 decision by the Ninth Circuit in A&M v Napster and the 2005 US Supreme Court decision in MGM v Grokster.

We didn’t know it at the time, but while this debate was going on, Steve Jobs and the Apple leadership were eyeing up a program called SoundJam, which they bought in 2000. In January 2001, Apple released a modified version of SoundJam, and called it iTunes 1.0. In October that year, it launched the first iPod. The company, and the music industry, have never been the same since.

Looking back, it seemed that the smart lawyers and Apple represented two contrasting approaches to the problem of music piracy. One was essentially defensive (how do we stop this?) while the other was creative (how can we meet this demand in a legitimate way?). A decade or so on, technology and broadband speed has developed and there are hundreds more content services, both legal and illegal. But, reading two recent contributions to the debate, you note that the two distinctive approaches still have their supporters.

In a piece on thewip.net this week, the writer and musician Victoria Aitken (left) criticised UK ministers for being “as soft as wet marshmallows” in tackling copyright piracy. Her article provides much insight into how young musicians suffer from the internet pirates that she calls “white-collar criminals”: Aitken says she earns next to nothing form royalties and CD sales, and makes her living from live performances.

Aitken supports the US SOPA bill, which has become a lost cause. In the UK, the Digital Economy Act promised to introduce the kind of blocking she favours, but its provisions have not yet been implemented, and probably never will be. The courts have stepped into the breach to some extent, but the fight to defeat illegal file-sharing services is clearly going to remain an uphill struggle.

A contrasting view came from the actor, director and producer Kevin Spacey, in his Mactaggart lecture at the Guardian Edinburgh International Television Festival. Spacey, who recently starred in House of Cards on Netflix (right), urged the industry to take risks, saying that in the long-run risk-takers are rewarded in both business and art. House of Cards, for example, was released all at once online, enabling viewers to spend 13 hours watching the entire series in one sitting. This proved, said Spacey, that audiences want control: “They want freedom. If they want to binge – as they’ve been doing on ‘House of Cards’ – then we should let them binge.”

Spacey didn’t address copyright in detail, but he did note that the House of Cards experience taught an important lesson: “Give people what they want – when they want it – in the form they want it in – at a reasonable price – and they’ll more likely pay for it rather than steal it, well, some will still steal it, but I believe this new model can take a bite out of piracy.”

So which is the right approach – the defensive or the creative? The law, lawyers and some copyright owners tend to err on the side of the former. But history suggests they should be more open to the latter.